# Transcript of Record — Boire v. Greyhound Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0027%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1964 - **Citation:** 376 U.S. 473 ## Text 3 : ° . ‘ 2 8 ie — — * _- Sapreme Court or the United States, ee “OCTOBER TERM, 1962 e a“ 92 * | 25 ° * d ? No. 844 rl = 0 ie e ‘ ° 2 : *.. HAROLD A. BOIRE, REGIONAL DIRECTOR. 8 . TWELFTH REGION, NATIONAL LABOR eS ae a . BOARD, PETITIONER, x 1 8 ki 55 THE GREYHOUND CORPORATION ; „ ON WRIT OF CERTIORARI TO.THE UNITED STATES’ es ; COURT oF APPEALS FOR THE FIFTH CIRCUIT - * ’ ie 1 ‘ad 0 83 9 5 2 * ’ - INDEX 8 , a 1 4.4 5 . Original Pr nur g Record from the. United States District, Court for ; io the Southern District of Florida — 5 - « Complaint 5 : . . 21 770 Exhibit A Decision and Direction of Elee— ; tion innues by. NLRB, paver we of May — „ 0 5 10 9 “Exhibit R--Letier from Nl AR to e one — änder E. Wilson. Ir. ted Nas. U. ot — l N 12 N “Exhibit (letter from NLRB to Arthur . . Milam, dated May, Az 1962 ES 48 f 14 f 8 aes * 7 „ in * 4 0 — — — . „„ et of A e ©. Wiles, 32. ; Affidavit of J. W. Cable. 4 0 N 8 3 8 2 8 88 * — —— 8 ont BSSs RS * 4 Clerk's. certificate (omitted in printing). ie iy of ee esse (omit vee ey im printing) — — —äà—L'̈— ! d¶ 2 Opinion, per curiam a Judgment sen Order allowing certiorari. * : * 2 - PS — — \ „ 2 — . o 1 — 2 8 * * Ps * E 101 7 I * I 4. \ ; \ 4 e | 0 4 * ?. ae l E . a . a. In UNIVE babe mn bor COURT eth SOUTHERN DISTRICT OF FLORIDA hee sk . 5 Gone 5 ey . f é 5 . ae ae K. 5 ye HA A. Bom, Regional Director, National Labor oe a su ite CompLaint—Filed May 22, 1962. "THE GREYHOUND Corporiffion, a * organized oF Tu GREYHOUND CORPORATION, a i cS and existing under and by virtue of the laws of the State of Delaware, plaintiff herein; complaining against HAROLD A. Bome, 48 REGIONAL DIRECTOR, TWELFTH REGION,.NA- ‘TIONAL LABOR. 1 Boarb, - respectfully — Tampa Division of the Southern District fol. 2 Southern Greyhound Lines Division is a operat- ing division and not a separate corporation. - this action is brought in his capacity as, Regional Director af the Twelfth Region of the National Labor Relations Board, the principal offices of which Region are located in Tampa, Hillsborough County, Florida, and the said defendant is a resident of Hillsborough County, Florida. 3. This is a civil action arising under an Act of Con- gress regulating commerce, to-wit, the Labor Management G wr. 1 ali al 10 be at] — . tion, , or (ii) tive as the ization acting in substantial n AE 11 145 | e e i: i . 4 — (4) Sec: 9 (e) (1) of the Act, * r as ea 85 lows: 8 5 a a and that their employer de- a. wish to be represented for col- the individual or labor 9 A) by an employee or group of employees bac or any individual or labor o their behalf alleging that a af employees (i) resentative defined in section 9 (4) which has been certified or is being currently crevognized by their employer as the bargaining clines to recognize their representa assert that rep in accordance with such regulations as may be pre- cseribed by the Board : 3 4 : Sig 4 ee ; 5 2 as 4 eS „ 3 (a); or “«(B) by an employer, alleging that one or organisations have | , to be recognized as the representative defindd in section 9 (a) 71 the Board shall investigate such petition and if re (Emphasis added.) (p) Sec. 2 (3) of said Act, which provides that the term “employee” shall not include any individual having the status of an independent contract. [fol. 4] (e) Sec. 8 (a) (5) of said Act, which provides . that it shall be an unfair labor practice for an employer _ refuse to bargain collectively with the repitsentatives . of his employees. —s - | . (d) See. 9 (a) of Act, which provides that rep- resentatives designated or selected for the purpose of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the ex- elusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other. con- ditions of employment. 5 a f KA. The findings of the Nationa} Labor Relations Board contained in the footnotes to the Decision and Direction of Election in case No. 12-RC-1209, attached hereto and incorporated herein W reference as Exhibit “A”, are in excess of the National Labor Relations Board's dele- gated powers and contrary to, the. provisions of the Act, and the same .are arbitrary and capricious and without authority in law or fact, and violate plaintiff's rights under said Act, as hereinabove set forth. 8 * — * 3 * * rected to direct and supervise an election. withir thirty (30) days from and after May 3, 1962, wherein certain National Labor Relations Board case No. 12-RC-1209, the plaintiff vigorously asserted and adduced evidence in ‘plaintiff received from the office of the defendant a copy of a letter dated May 11; 1962, addressed to ‘ the persons comprising the unit described in said Decision 15. One or more days subsequent to May 11, 1962, the support of its contention that it was not the employer of E. Wilson, Jr., Esquire/ with a carbon copy to ‘plaintiff, a true and correct copy thereof being attached hereto incorporated herein by reference as Exhibit B. 16. The plaintiff ‘received, one or more days subse- quent to. May 17, 1962, a letter addressed to one of its - attorneys from the office of the defendant; dated May 17, 1962, a true and correct copy of which letter is at- Senne incorporated herein by reference as Exhibit . 17. It is evident from Exhibits “A”, “B” and “C”, oe the 2 Sty be ‘ If ol. 7) 18. attached hereto, that the proposed election, of which plain- tiff complains herein, will be held and conducted by the ined and enjoined, as herein prayed. ‘plaintiff and Floors, Inc., of Florida, a wholly owned subsidiary of Floors, Inc., a Georgia cor. . defendant on about May 28 or May 29, 1962, unless ~ poration, are parties to agreements, true and correct , copies of which are attached hereto and incorporated 2 . 33 > eS 0 D “Exhibits D*, Da, “Ds”, PA“ and “D-5”. — In Gi Action No. 3047 in the United States Dis- trict Court, Southern District. of - Florida, Jacksonville Division, wherein the. plaintiff herein was the plaintift and the petitioning union in National Labor Nalations Board case No. 12-RC-1209 was the defendant, the Honor- able Bryan 8 , United States District Judge, made and caused to entered an Order and Findings of Fact and Conclusions of Law. in support thereof, both dated July 27, 1955, wherein said Court found Floors, Inc., of Florida to be. an independent contractor with regard to the contract between plaintiff and Floors, Inc., of Florida, attached hereto as Exhibit “D-1”. A certified copy of ‘said Order is attached hereto and incorporated herein ‘by . reference as Exhibit “E-1”, and a certified copy of said Findings of Fact and Conclusions of Law is attached _ hereto and incorporated herein by reference as Exhibit 8 20. ‘The plaintiff has no adequate remedy at-law for 3 tie following reasons: a (a) If the election be held, and the persons com- prising the unit deseribed in the Decision and Direction of Election vote in the majority for the proposed union. representative, plaintiff will have no right of judicial 0 } eel : with and found guilty of committing an unfair labor prac- . ties bbe such refusal, and a p for enforcement aa by and prosecuted by Ae National Labor Re- 9 lations Board in the United States Court of Appeals for [fol. 8] the Fifth Circuit, all of which procedure is con- tingent and costly and constitutes unconscionable delay i in the judicial determination of. plaintiff's richts. (b) If a majority of the persons comprising the pur. ported appropriate unit as described in the Decision and Direction of Election vote against being represented by the union seeking representative status, the plaintiff will have no recourse to determine its legal rights and status. (e) So. long as the conclusion of the National Labor Relations Board, as expressed in the Decision and Divec- | & 9 7 —“B” and “C” attach election pursuant to the above referred to Decision and Di- rection of Election of the National Labor Relations Board in that Board’s case No. 12-RC-1209. 15 5 fol. 91 (b) That this Court issue its rule to show cause, directed to the defendant, requiring the defendant to be and appear before this Court on a day certain to show cause, if any he can, why a temporary injunction should not issue restraining and enjoining the defendant and all persons acting in the stead of the defendant-or under the direction and control of the defendant, from conducting a representation election pursuant to the above referred to Decision and Direction of Election of :the~National Labor Relations Board in that Board’s case No. 12-RC-1209; and that upon the hearing on said show cause order, a tem- porary, injunction issue so restraining and enjoining the defendant. pa Sic 5 * le) That upon final hearing, this Court issue 4 per- manent injunction, permanently restraining and enjoining’ 8 2 For thecking the lovel of ful oil, water, etc., and Ae | replenishing as needed on all pooled buses. . 8. For cleaning pooled buses, interior, windshields, rear view mirrors, also windows when needed. 4. For convenience duties. 5 . Froors, INc., agrees to furnish not less than the ma” seven hundred and sixty-five (765) weekly man hours shown in the following schedule of assignments except that schedule revisions including. increases or decreases in total weekly man hours may be made from time to time / subject to the approval of the Terminal Management. 3 9 tool. 28] Sch A a 1 3 . Days off: 5 1. 12:30 AM_4:00 AM dune) 5:00 AM : —10:00 AM Mon.-Tue. 2. 2:45 AM_7:15 AM (lunch) 8:45 AM— 12:15 PM Sat.-Sun. 3. 6:00 AM—10:30 AM (iuneh) 12 noon— .. a 4:00 PM: : Thurs.-F ri. 4. 6.45 AM —11:00 AM (lunch) 11 80 AM 3:45 PM Tue. -Wed. 5. 10:00 AM—3:30 PM (lunch) 4300 PM” —7:00 PM Sun.-Mon. 6. 2230 PM 7:00 PM (lunch) 8:30 PM— es. 12:30 AM Wed.-Thurs. 7. 4:45 PM 9:15 PM (lunch) 10: „ —2:15 AM . Sun.-Mon. - 8. 5:00 PM—9:30 PM (lunch) 10 30 PM —2:30 AM - * §at.Sun/ 9. 9:45 PM—4:15 AM (lunch) 4:45 AM— 55 „ le .: Tue.-Wed. 10. Relieves 28 Fri.; #2 Sit- Sun. i (AM) Mon.-Tue. | Wed.-Thurs. Relieves #8 Sat.-Sun.; #7 Mon.; #9. 5 Tue.-Wed. Thurs.-Fri. Relieves #7 Sun.; #15 Mon. Tue.; F #6 Ree? a Wed.-Thurs. Fri.-Sat. 13. Relieves #5 Sun. Mon.; #4 Tue.-Wed.; ss 8 Thurs. — Fri.-Sat. 14. 7:00 AM—8:80 PM daily except Wed. & ae .. Thurs. (relief days). Relief Wed. & Thurs. by 2 15; 8:00 AM—1:00 PM (lunch) 2:00 PM—§:30 PM 15. 5:00 PM—1:30 AM, daily except Wed. & Thurs. Relieve 2 14 as shown with schedule #14. Off Mon.-Tues. by #12.: 8 ‘ „ 2 ' | | D Lol. 26 Schspülz B 1. Monday through Friday 5:00 AM—11:00 AM (lunch) 12 noon—2:30 PM; Saturday 1:00 AM—5:30 Au (lunch) 6:00 AM—10:00 AM; Sunday 6:30 AM— ‘ ee (lunch) 12 noon—4:00 PM. : Days off: Sun.-Mon. 2. S through Thursday: 4:30. PM—9:30 PM (lunch) 10:00 PM—2:00 AM; Friday, 3:00 PM— — 9:30 PM (lunch) 10:00 PM—12 midnight; Saturday, 8:00 PM 2:00. AM Nera 3:00 AM—5:00 AM. : Days off : Thure.-Fri. 3 3 Schedule 1 8 Friday; Saturday only, extra; 10:30 AM—3 :30. PM i . 4:00 MP—7 :30 PM. Days off: Tue.-Wed. . -c (( traet that these Services Schedules are intended to main- i tain the highest standards of efficiency under existing “circumstances at all times., All suggestions and helpful cooperation on the part of FLORIDA GREYHOUND LINES and TERMINAL MANAGEMENT considered by -the gontractor - as obligatory and same shall be reciprocal in the event of additions to or deletions from these Services * ‘EXHIBIT P. 2 70 Courrulker 5 233-56 A REVISION OF. THE ketene tisivere N FLOOoRS,. INC., AND FLORIDA. GREYHOUND — (Division of The Greyhound Corporation): THE AGREEMENT OF NOVEM- BER 11, 1 WHICH BECAME EFFECTIVE AUGUST 21st, - 1955, Is HEREBY ALTERED AND REVISED THIS DATE, | Manon 3, 1956, as follows: I. Floors, Ine., as the contractor for all eae and porter services in the Jacksonville Ureyhound Ter- 1 fol. 27] minal (as all were defined in agreement of No- vember 11, 1954), will now perform the identical services with only the following specific . in the nn | hundred and gy sabe 67650 Work eee pe Mons, D8) is hereby made null ‘and void hundred and erde (723) work hours in ful - Z ð ew ante by the Terminal ee of the Jacksonville Grey- A b hours-total of 723 * of 715 work hours to fulfill the terminal schedule and an addi- tional total of 8 work hours above this terminal "schedule, which shall be used in terminal cleaning. B. It is further. agreed --that=the-original per annum (fred) charge of $53,768.00 is hereby made null and void and that the agreed per annum charge is now made $56,645.00 for all services agreed to (by. agree- . ment of November 11, 1954), all services now being performed (excepting : tered work hours totals), and all er dees agreed to pperformed from this date for. C. . e e e ben dell bs Werse ‘ or decreased by direction of the Terminal Manager, only. The alteration of these total hours (715 actual terminal schedule hours, only) shall be at the hourly rate, for detrease or increase, of $1.506¢ per hour. These added or decreased charges shall apply, weekly, as altered upwards or downwards, to the weekly in- voicing to Florida Greyhound Lines by n Ine. f for the services rendered. 1. (The hourly rate of $i. 506¢ for inerease to, or deerease from, the fixed weekly invoicing price [fol. 28] of $1,089.38 shall have been obtained by a divi- sion of the total per annum fixtd agreement price of $56,645.00 by the per annum total of 37,596 total work hours involved in ee schedule fulfill- ment.) D. An hours of overtime work involved in the proper handling of all porter services to baggage handling uf tin per each overtime hour, net. fol. 29] > 2 — ; 8 4 nee 25 ons, work hours, shall be directed to be used, affected be and operated as such by the Jacksonville Greyhound 1. Suck direction to increase the work hours use- — * age, at an overtime rate, based upon the particular worker or workers’ hourly rate, over and above the present terminal schedule of 715 work hours, shall be the sole and only authority for Floors, Inc. to charge such directed overtime hours used to Florida Greyhound Lines, over-and-above the regular week- rates as applicable: (a) All workers employed by Floors, Inc. in. the Jacksonville Greyhound Terminal at the hour- d a ly rate of $1.00 per hour shall be paid at the asd ‘bonis operations, above the guaranteed total of b invoicing of 31,089.33, at the following agreed rate of. $1.50 per each overtime hour by . Floors, Inc. Each overtime -hour used at the rate of $1.50: per hour shall be charged and . invoiced to Florida Greyhound Lines as $1.75 per each overtime hour, net. (b) All. workers employed by Floors, Inc, in the Jacksonville Greyhound Terminal at the hourly rate of $1.25 per hour shall be paid at the rate of $1.875¢ per each overtime hour by Floors, Ine. Each overtime hour used at the rate of $1.875¢ per hour shall be charged and ‘ invoiced to Florida Greyhound Lines as $2.10 E. No overtime hours (for holiday traffic in- creases, emergencies, rush“ and/or “peak” periods), 2 [will be charged] “[initialed by JDS and ARA] wit . out authorization of the Jacksonville Greyhound Ter- minal Manager. The Terminal Manager shall: sign, or initial each order for overtime to be used by Floors, Inc. A duplicate copy. of each overtime order made up and signed by the Terminal Manager shall be furnished to Florida Greyhound. Each order of - authorization by the Terminal Manager for usage of ‘overtime hours by Floors, Inc. , inelude the work- | aoe YO as ats name, the de base hourly pay rate, the worker’s overtime hourly pay rate and the net charge 4 PF Floors; Inc. \ . These si denen, revisions and changes from the ori t of November 11, 1954, con- tain and all stipulations and agreements and .. thamiete tee-qyesetares for handling all services and operations and the pro- oedures for making all charges therein, the original 6— Seliy: ta ab eer serrate. FLo0RS, INC. / A. R. Andrews | gg Vice President and Sales Manager 7 0 Fon GREYHOUND LINES (Division of The Greyhaund en ; 7 J. D. Segal b . e e ee 4° N — 4 oR — | is 8 : Ng | {fol 80} Exam “D.3” To COMPLAINT * An AMENDMENT 10 THE ORIGINAL AND REVISED AGREE- N INc., ENTERED INTO THIS 28th DAY OF SEPTEMBER, 1956, WITH THE FOLLOWING STIPULATIONS. AND ALTERATIONS: I. For the sole purpose of expanding services in ther new _ Jacksonville Greyhound Bus Terminal. : II. For alteration of the methods previously used . in⸗ : voieing and charging all work in the agreements to ne ee ' FLORIDA GREYHOUND LINES by FLoors, INC. © : o III. For the purpose of providing extra cleaning labor over and above the normal daily, maintenance pro- gram, for the initial heavy clean-up which is ex- . to be required for good quality appearances oe iin the new terminal building. | IV. For the purpose of providing: proper supervision and | additional labor for bus loading as ern 85 Ir 18 AGREED AS FoLiows: ae I. Expansion of eleaning services: A. To permit FI OORS, INC. to increase e its labor cotals for expanded cleaning services by a total of 138.0 man hours over and above hy present totals of hours presently being used in cleaning. The increase to be paid to work- erg by ‘FLoors, INC. at $1.00 per hour and leaving a net increase, for labor only, as fol- lows: pee Sos ee. B. To permit FLoors, INC: to increase its super- . vision over the new expanded cleaning serv- : [fol. 311 ices by au addition of one 00 full-time supervisor, ag follows: ; Per week $ 85.00 . D : 5 : C cae, an e 2 C. To permit Flons, INC. to increase, a8 a di- rect result of the increment in basic labor and supervision, the correct accompanying overhead (which is 28% of total cost in- 3 a voice, over the total of increased labor and er dy. Oe: . supervision) as follows: f 5 Per week i — 3 86.72 : TOTALS OF ALL INCREASES © . —= $809.72 7 II. “Alteration of invoicing methods: A. It is. that Fl bons, INC. will invgice all work in the agreements to FTA GREYHO LINES under a n plus arrangement, as follows : 1. Tne complete break-down of percentages _ progressions for arriving at the weekly. 1 total of invoice is hereby attached as Ex- 25 . Hipit “A” and made part of this amend-~ ment by signatures of both parties. ie 2. The maximum gharanteed weekly total iuvoice charge is — stipulated, as follows: a „ present total weekly firm price $1,209.80 "Total inereased weekly labor ete. 309.72 * e e is $1,519.52 3. The maximum 8 83 invoice _ charge is hereby made part of this Sty amendment and new. method for pricing 2 — all total work invoice N as: me - 2 519.52. f ARES. “[fol. 32) 5 Gs III. Provision of extra 4 labor x initial cleaning) : A. To permit FLoors, INc. to perform extra and ee heavy and ' initial cleaning in the new ter- : , minal. for work that is expected to be required to é — nese best = appearances, during the 2 ~ SPE iH iH rie 881 bia 111 aft 5 F i A 5 i F * al F i 771 i 1445 1255 rE Alz the cost-plus method at no more, ‘hes $1,644.52, which is the maximum guaranteed ee eee : IV. Special considerations : FLoors, INC. guarantees that only a pro-rata part of this. supervisor’s salary wages be applied to the total of payroll labor- supervision. It fur- ; Z ů Lacs tee if a sizeable part of this supervisor’s total work week hours are utilized by FLocas, INC. elsewhere than in the new termnial, that that part of his wages will be charged to FLoors, INC. only: 8 B. It is recognized by both parties that the new ter- minal is intended towards an attraction of new and added passenger volume to the present volume of business of such nature, now being enjoyed by | [fol. 33] the JACKSONVILLE GREYHOUND Bus e in all itss facilities for such handling It is now agreed that if this prone volume inerease occurs to the point of burdening the present bus-loading schedule, by addition of other bus-handling ‘or added baggage handling duties and/or convenience duties, that Floors, INC. may be sas the — of additional man hours, Ee ae 135 5 | Bla | @. ut 1 1 10 e all other respects. ‘This amneudenpat ve on the first day the 75 ecti becomes eff . 5 8 1 : 2 services are required at the Froons, INC. : 4 5 5 S 8 3 2 . 8 3 4 a - [fol 20 BXHIBIT “A” I. DEFINED Cost-PLUs BREAK-DOWN- or bea I. All labor and attendant zuper- vision (permanent on-job su- 5 a : pervision) | . 72.0 % of total cost II. Obligatory taxes to labor - (Federal & State) including . +e insurance on labor wages 5.2 % of total cost III. Expendable materials for all he ht nightly cleaning, only . 6.3 % of total cost “Machinery, placement & useage 2.1. % of total cost Clerical handling all payrolls wie ' general guper vision, transpor- i +. tation and all equipment other 1 us than expendable materials for | — ir cleaning, only 8.4 % of total cost 5 VL Gross operating fee 6.0 % of total cost Aa > Weekly, monthly 100.00 % —— or per annum 50 . total net ene f e kol. 35 | 5 Nor: Weekly invoicing to include; totals of 8 and 1 supervision; names of personnel ineluded and to- tal wages paid, weekly, these — . —. From h B — 5 FLORIDA ‘GREYHOUND. LINES ( Division of The Greyhound Corporation) 9 President „ — 0 ¢ EXHIBIT “D-4” 10 COMPLAINT Division ‘of The Greyhound Corporation 1352 Vega Street „Jacksonville, Florida November 13, 1957 i Dear Mr. Martin: Vou also state in your letter that you anticipate pay- - ing employees an average of $1.20 per hour and super- visors 3100.00 per week, but in the event you are able to hire émployees at $1.00 per hour and supervisors at less money than the — he \ $100,00 this savings, of course, would — * 33 „ J ian e e cost - plus basis. : you an extra copy of this letter and ask shat you Nan dign on the tine provided ab that we, may have a record in our files that you have insurance cover- ing Workmen’s Compensation and liability with a clause showing that Greyhound will be held harmless in the event of any. claim arising in connection with your serv- ices. ements either party for any reason whatsoever on 30 day written notice, the same as the Jacksonville contract. | 05 Prog Very truly yours, J. W. Cantz, Reg. Mgr. 2 This i. to cavlity that Greyhound will be fully hs as outlined in the above letter. This insurance will be- oe 12:01 AM December 1, 1957. oa 34 : lol. 877 krumm “D-5” To COMPLAINT She January 24, 1958 Mr. Larry p. Martin, President fi Floors, Inc. 5 840 DeKalb Avenue, N. E. e ost ies Atlanta, Georgia , Dear Mr. Martin: eee -This will confirm. our conversation of . 15, at _ which time I asked that you make arrangements to fur- 3 us janitorial and loading service at our Tampa and etersburg Terminals on the same basis that we have with you on our Miami Terminal. This service to become effective 12:01 A.M. February 1, 1958. 5 If possible, we would like for Southeastern 6 hound Lines to be named as co-insured on the insurance poliey covering Tampa and St. Petersburg for liability. It is agreeable with us for you to separate the payroll for lodders and divide this amount by 1 80 to * the Sere. | Very tly yours, - | JWC:um EXHIBIT “E-1” TO ComPLanvt N order Gresting Plaintiff's and 8 Defendant’s Motion for Summary Judgment, and Summary . 6 Declaratory Judgment e hes July 27, 1066. After es) notice 1 ‘counsel for the sfteciad partion,’ this cause was heard on plaintiff’s motion for summary [fol. 38] judgment (filed February 28, 1955) with affi- davit of P. G. Howe attached, and upon. defendant’s motion for summary judgment (filed March 2, 1955) „ ith affidavit of H. A. Phillips attached, and upon. the entire record and file herein; thereafter, briefs and ye ae reply briefs were filed by counsel for the respective 85 parties, with leave of Court; the Court has this day filed its Findings of Fact and Conelusions of 8 ne herein; ' Whereupon, upon consideration of the foregoing it is — 7 ORDERED and Ab upp: * = | 1. The defendant’s motion for summary 1 is — denied. 2. The plaintiffs motion for summary judgment * granted and judgment is here entered for the plaintiff and against the defendant in accordance with the Find- ings of Fact and Conclusions of Law this day filed by the Court. 3. The Court there C and duties of the plaintiffs and defendants under the col- lective bargaining agreement. of August 19, 1953 and in the controversy stated in the plaintiff’s complaint and de- fendant’s answer thereto to be as follows: (a) Said collective bargaining agreement, 1 ex- pressly nor impliedly restricts the plaintiff from sub- contracting the services covered by its contract of Novem- , ber 11, 1954 with Floors, Inc. e The plaintiff is entitled to ended into and to. put into effect said contract with Floors, Ine. of November * 1964. N 2 * VA we t (e) Said contract of November 11, 1954 is not a breach of the collective | bargaining agreement between [fol. 39] plaintiff and defendant and the defendant is not entitled to prohibit or interfere with the plaintiff’s exer- cise of its inherent rights of management invelved: in 8 : aid contract of November 11, 1954. : DONE AND ORDERED at Jacksonville, Florida, Juby 27, 1955. ii . 0 /s/ Bryan 0 United States Distriet Judge. aine, Carroll & ade ee & Coffee ~ I certify the labo | te be a true and correct copy of the . * * ULIAN 4 seca Clerk, United States District : Court, Southern ba ; of — | : . 5 ( ‘By: Davip_ 4 PELLICER. LP “Deputy Clerk 2 ° g ie “E-2” To CourLuher wos "Findings of Fact and Conclusions of Law. (Filed July 27, 1955.) In support of the order this day filed “denying 1 fendant's motion for summary judgment, ‘granting plain- tiff's motion for summary judgment and entering sum- mary , wea | judgment, I make the following FINDINGS OF Fact. ae The plaintiff (hereinafter, the Company) is a cor- ‘ poration incorporated under the laws of the State of Delaware, and is a common carrier by motor vehicles en- * gaged in the transportation of persons for compensation in interstate and intrastate commerce within the State of [fol. 40] Florida and elsewhere, pursuant to authority : granted by the Interstate Commerce Commission and The Florida Railroad and Public Utility Commission feet since August. 19, 1953, and by its terms shall remain in effect until June 30, 1956, and each year thereafter un- 2. The defendant (hereinafter, the Union) is a vol- untary unincorporated. 174 rganization and maintains its local offices in the city of e City, Florida, and each member of the defendant association is a citizen of a state other than the state of Delaware. +4) 3. On August. 15 1953, the Company and Union entered. into a written collective bargaining agreement | wherein the Company recognized the Union as a bargain- ing representative for Company’ s operators (bus drivers) and te al employes in various terminals, including. Company termina! employees in the J acksonville, Florida terminal. Said agreement has been continuously in ef- less terminated by at least 60 days’ written notice by either party to the other prior to the date of initial ter- mination or the date of termfnation of any annual renewal thereof. 5 4. On November 11, 1954, the Company * into _ a contract with Floors, Inc., a corporation incorporated under the laws of the State of Georgia and authorized to do business in Florida, whereby Floors, Inc., and inde- pendent ‘contractor, specializing in maid, janitorial and porter services, eit to perform * services in n the Company’s Jacksonville, Florida terminal, to-wit: clean- . ing and maintaining rest rooms and generally providing: _ +, janitorial service for the terminal building, furnishing - supervised personnel for handling baggage, express, load- ing ‘and unloading buses, checking oil, gas and water in buses, cleaning buses and providing other convenience kol. 41) dation and services. These services have hereto- fore been performed and are now being performed by Company employees in the Jacksonville terminal, who are members of the Union and represented by it as Bargain- -ing Agent, and (as found in Paragraph 3 above) a class | of employees whose wages, hours and working conditions are. covered by the collective bargaining agreement of August 19, 19538. — = Subsequent to the execution of said contract with Floors, Inc., the Company caused to be served upon its said employees engaged in maid, janitorial and porter _ services, a notice of furl on account of a reduction in ~ forces effective November 28, 1954, the date Company's contract with ie oe ee whereupon representatives of the Union informed the Company that > if its contract with Floors, Ine. was implemented, result- ing in the furlough of maids, porters and janitors as aforesaid, the Union would treat the furlough of employ- pret and the subcontracting of work as a breach of the agreement of August 19, 1953, which breach by the Com- pany would justify the Union in treating such breach as a release of it from the No Strike“ provision of the contract and that under such circumstances a strike of the - operators and terminal employees would occur, forcing a suspension of the Company’s entire motor bus operations. 6. Because of the serious economic consequences to both the Company and its employee members of the Union of such a strike, should it occur, the Company on Novem- ber 22, 1954 agreed with the duly qualified representa- tive of the Union, H. A. Phillips, its President, that the effective date of furlough a effective date of its con- tract with Floors, Inc. be temporarily postponed pending an investigation and determination of the legal rights and responsibilities of the asians as fixed by Save: Bar- 0 8 „ — : e : 39 . _. [fol. 42 gaining Agreement of August 19, 1953, cur- rently binding on the respective parties. 7. The Company advised the Union that its contract with Floors, Inc. was made under its reserved powers of management and for reasons of efficiency, convenience to the public and economy in operations and that under the contract with Floors, Inc. the Company would achieve an operational savings of $10,125.44 per Near. 8. The Company further advised the Union that the said contract and notice of furlough were made in faith and in the exercise of the sound principles of man- agement imposed by regulatory. agencies as due the travel- ing public and without intent to harm the Union or to im- . pair its status as Collective Bargaining Agent; the Com- -, pany further advised the Union that said contract was made pursuant to the Company’ s inherent rights to man- age the affairs of the Company which have not been sur- rendered by the said ugreement of August 19, 1953, and under the law respecting ‘operation of public utilities could not have been surrendered or impaired by that’ agreement. 9. The Union advised the Company that it deemed the proposed contract with Floors, Inc. in violation of the agreement of August 19, 1953 and that the threat of a general strike against the Company's operation would continue and a strike occur if that contract were acti- vated. 10. The Company's contract with Fiera, Inc. was made in good faith and in the exereise of sound principles of management. a 11. The Company's contract with Floors, Ine. was ey pursuant to the Company’s inherent right to man- ge the affairs of the Company. : (fol. 43] 12. The Company’s contract’ with Floors, Ine. will enable the Company to save $10,125.44 in ann costs per year. ee There is no express prohibition in ay collective bargaining ‘agreement between the Company and the Union dated August 19, 1953, against the Company sub- contracting work of the nature involved in the contract with Floors, Ine. From the ee facts, I make the. following ee) 10. “The plaintiff’s motion for summary judgment will be granted in conformity with the above expressed find- ings and defendant’s motion for summary judgment will be denied, and summary declaratory judgment entered 7e Bryan Simpe rn United States District Judge 4 ¢ — 8 ville, Florida July 27 1955 e BRS: Coffee & Coffee ee — . Meng the foeguing tobe a tre and correct en. - of the original. Juin A. BLAKE, Clerk. Uni States District Bont District Court, ot Fords si By /s/ David A: Pellicer - Deputy Clerk (Seal) 3 | c ; 42 2 ie [fol. 46 IN UNITED STATES DISTRICT COURT FOR THE - "SOUTHERN DISTRICT OF FLORIDA 7 ‘Personally appeared before the PR ery officer authorized by law to administer oaths; ALEXANDER E. _ WILSON, JR., who first being duly sworn, deposes and | says as follows: ane ern Wilson, Jr., and I am an at- torney at law, with offices in the: ‘Rhodes-Haverty Build- ing, in Atlanta, Georgia. Floors employed a total of 384 persons in the State of Florida at the time of the hearing in the above referred to National Labor Relations Board case, Floors now em- ploys substantially in excess of 500 employees in the State of Florida. Only 63 Floors e employees work part or full time at Greyhound bus terminals in Florida. 26 Floors employees are based in Tampa, of whom 12 are employed [fol. 46] full or part time at the Tampa Greyhound ter- minal and 6 at the St. Petersburg Greyhound terminal. Floors employs 17 persons who work at the Miami Grey- . N . 5 — 0 6 35 2 hound terminal, and 28 Who work at the “Jacksonville _ Greyhound terminal. es ; a Floors contracts to perform services for its customers . for a fixed price, the price usually being determined on a cost-plus basis, and agrees to ‘provide to customers a a certain number of man hours of. work per week to per- form the work contracted for by the customers. A Floors "supervisor is then instructed by Floors. to supervise the Work of such employees. 1 5 I have been attorney for Floors, Inc., the® Georgia corporation, since 1950, and have been attorney for Floors, Inc., of: Florida, since its inception, and thus know all f the matters referred to in this affidavit. : With reference tc all of the employees of Floors, Inc., of Florida, only Floors has the right to hire, discharge and discipline such employees. This is specifically true with reference to the Floors employees: assigned to work at the Greyhound terminals at Jacksonville, Tampa, St. Petersburg and Miami, Florida. Floors trains all of its remove such employee from such premises but would have no responsibility to the customer whatsoever to discharge such employee. 5 . The wages of Floors employees assigned to work at Greyhound terminals are paid by Floors, the pay checks being made up at Floors majn office in Atlanta and dis- tributed to. the employees through Floors supervisors. — Floors determines what to pay its.employees and the only - (fol. 47] interest which customers of Floors have as. to such wages is the fact that most Floors contracts are on a cost - plus basis. Typical of this situation is the fact that all janitors and maids employed by Floors in the = Tampa area, working on the premises of various. Floors customers, including Greyhound, receive the same. wage kate. Floors has the right to fix fringe benefits. for its employees and to establish and maintain working condi- ~ tions for its employees. Greyhound representatives do not. supervise or instruct Floors employees on the job, 501 — * > ea \ rte E . a os \ 2 7 44 ra 9 bak e* \ except in extremely rare instances 3 „ energencles may necessitate such instruction. Any complaints that Greyhound may have as to the work of any of Floors em- 2 ployees must de made to Floors ‘supervisors and not to the employees. Floors is the sole supervisor of the day to day activities of its employees assigned to work on Greyhound premises. Floors also determines the hours of work of its em- ployes. Floors also at any time may transfer an employee - from. work being performed for one customer of Floors ° : 2 et Be " OnpERED, ADSUDGED and DECREED? — | ae That the oral motion to extend Ihe temporary re- a 5 / : 9 | 3 „ furnished the Court with authorities and. an extensive We brief in support of the position ef the respondent, and the cCounsel for the petitioner also submitted further legal. briefs in support of its position, and inasmuch as the Court is currently engaged in trying civil jury cases and would not be in a position to ¢ ider the matter in- volved in this cause prior to the fxpiration date hereto- fore set; and it further appearing the Court’s satisfae- N of the status quo in this cause is well justified and highly desirable; it is, therefore, upon consideration, „ „ tion that the maintenance of — * straining order issued by this Court on the 24th day of May, 1962, be, and the same is hereby, granted, and the temporary restraining order be, and the same is hereby, extended until the 14th day of June, 1962. It is further / Warren E. Hall; ir. * Attorney 8 IN UNITED STATES DISTRICT COURT FOR THE “SOUTHERN DISTRICT OF FLORIDA “ORDER EXTENDING «TEMPORARY, RESTRAINING: ORDER— : June 4, 4962 ORDERED, ADJUDGED and DECREED: ° 8 | That the bond heretofore posted by the petitioner, The Greyhound Corporation, in compliance with Rule 65 of the Federal Rules of Civil Procedure, shall remain in full force and effect until the expiration of this extended period of time, to-wit, June 14, 1962. day of June, 1962. 5 . . Is, Joseph P. Lieb, 2 &. Pigs Biter: [fol 60] DONE and ORDERED at Tampa, Florida, this 4th — / ) Judge of United States District eee Court. * 52 5 es 7 er 8 7 . IN UNITED STATES DISTRICT COURT FoR THE. . SOUTHERN DISTRICT OF FLORIDA FINAL DECREE. FOR PERMANENT INJUNGTION. AND _ MEMORANDUM Opinion—June 11, 1962 Las, District Judge 5 THIS CAUSE came on to be · heard upon the plaintifrs fs Prayer for Preliminary Injunction, said hearing having been provided in the Court’s Temporary Restraining Order and Order Setting Hearing for Preliminary In- ‘junction entered May 24, 1962. Prior to the hearing, the defendant filed a Motion to Dismiss and, in the alterna- tive, a Motion for Summary Judgment. Plaintiff presented its Complaint and exhibits attached thereto, together with an affidavit of an officer of Floors, Inc., of Florida, and an affidavit of the regional manager of plaintiff, the latter: affidavit, in part, swearing to the allegations of the com- plaint. No affidavits were presented on behalf of the de- fendant nor were any sworn pleadings filed on behalf of said defendant. : After considering the matters hereinabove referred to and hearing argument of counsel for the respective parties, the Court is of the opinion t there are no material issues of fact, and the issues of law as. resolved herein make it unnecessary and undesirable for the Court to issue/ a temporary aaa but that a permanent in- 2 is warranted by the findings hereinafter set “A 1101 8 61]. The plaintiff contends that a Decision iad Di- rection of Election of the National Labor Relations Board in that Board's case No. 12-RC-1209, issuing certain. directions to the defendant herein, is contrary to the ex- press provisions of the National Labor Relations Act, as, amended, and is beyond the statutory powers vested in. the National Labor Relations Board. This contention is predicated upon the fact that in said Decision and Di- rection of Election, the Board found that a corporate entity. other than plaintiff, viz., Floors, Inc., of Florida, hires, pays, disciplines, transfers, promotes and dis- charges the porters, janitors and maids who are alleged — to N an e unit for the n of 07 5 Z 2 ee pikes 53, lective bargaining; but nevertheless also found that the said Floors, Inc., and the plaintiff, were joint employers of the employees in the‘ said unit. The findings of the Board, all y in support of a joint employer relation- ship, are that the plaintiff's terminal managers confer . with Floors’ rvisors in setting up work schedules and in determifiing the number of employees required to meet those schedules; that Floors’ supervisors may. visit the plaintiff’s terminals on an irregular basis, and on occasion may not appear for as much as two days at a time; that the employees receive work instructions From plaintiff's terminal officials; and that. on one occa- sion the plaintiff prompted the discharge of a porter whom | it felt to be an unsatisfactory employee. The Court is of the opinion that the findings of the Board, as recited, are, as a matter of law, insufficient to create a joint em- BARN ‘ployer relationship with res to the employees in said unit; but that, on the contrary, said findings establish as a matter of law that Floors, Inc., is an independent ‘contractor and, for the purposes of collective bargaining, gard to representation proceedings thie Board is prohibited . [fol. 62] by the_provisions of the National Labor Rela- having the status of an independent ebntractor- is ex. pressly excluded from the term “employee”, as defined in that Act. As a matter of law, the employees of an in- @ependent: contractor do not stand ins the relationship of e principal who em- 5 wd 0 : is no eniployer-employee relationship; as-between the per- ; 7. 2 Aet would be patently absurd. One can readily see that the prime object of the compulsory bargaining feature of - the Act is to bargain on wages and working conditions. It is impossible to compreliend how an employer could bargain in good faith about wages with employees. who Dare not paid by said employer and over whom the said loyer cannot exercise the power of hiring or firing. Court further finds that this case is controlled by a the decision of the Supreme Court of the United States in Leedom v. Kyne (1958), 358 U.S. 184, 3 L.Ed.2d 210, 79 Sup: Ct. 180, and that this Court has jurisdiction-of the action under Section 24(8) of the Judicial Code, 28 U.S. C. A., f 1337, because the action arises under an Act of Congress regulating commerce. The Court further finds that in its said Decision and Direction of Election the kol. 63] Board has attempted to act in excess of its delegated power, particularly in view of the legislative ‘history of the portion of the Taft-Hartley Act of 1947 which amended the definition of the word “employee” 80 as to expressly exclude independent contractors”. In further support of the Court's finding that ais ELN are affidavits which are challenged by counter-affidavits in this ease, ting conclusively that, with aby to the said 2mployees,: Floors, Inc., and only Floors, pa social. security taxes and unemployment — 1 surance, withholds Federal income taxes, determines rates of pay and hours of employment, provides day to day supervision, furnishes all supplies and equipment used by its employees, and retains and exercises the right to use its employees on whatever job it desires; and that the employees in the purported unit constitute only a relative few of Floors“ emp in the areas involved, such other employees being gaged in activities wholly unrelated to the plaintiff. The defendant’s contention: is that this Court is with- out jurisdiction of the subject matter, first, because the subjeet matter is Fan within the competence and jurisdiction of the by virtue of the National Labor Relations Act, and as amended by the Taft-Hartley- Act, and second,.even if this Court is not deprived of jurisdic 7 fro Rt tion because of the Acts cited above, it lacks equity juris- diction because of the availability of other adequate reme- dies which exist before the Board and before the Court Sof Appeals through the enforeement proceedings provided for in the At. 5 ö With regard to the first contention, it is the opinion of the Court that the Subject matter involved in. this liti- fol. 64] gation is not the subject matter which is within the exclusive jurisdiction and competence of the Board, and the matter involved in this cause does not involve a review of an erréneous decision of the Board but rather involves an attack on the action taken by the Board which it was not authorized to take under the statute. Repre- sentation orders of the Board have not been vested with complete immunity from injunction, either by inferences from the National Labor. Relations Act or-on the principle of Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). (See Em- presa Hondurena- de Vapores, S. A., v. Ivan C. McLeod, | _ Regional Director, etc, (2 Cir. 1962), 300 F.2d 223.) Whether or not this (Wurt is authorized to intervene in a @ representation proceeding depends ultimately on the Aacts presented to it; and if it appears that the Board exceeded its delegated: powers, either by acting contrary to a ‘mandatofy prohibition of the Act (see Leedom v. Kyne, supra) or by acting clearly. contrary. to the over-all | spirit of the Act and the manifested intention of Congress (see Empresa Hondurena de Vavores v.. McLeod, supra), ten this Court cannot fail to exercise its equity powers. to prevent a wrong. 2 13 g With regard to the second contention that this Court ‘Jacks equity jurisdiction because of the availability of . . other: remedies, it: is the opinion of the Court that this _ © contention is equally without merit. The method allegedly | oöpen to the plaintiff to contest. the Board’s decision is as follows: The plaintiff can refuse to bargain with the Union involved in this case when it is.certified, and there- by plaintiff is open to an unfair labor practice charge. (29 U.S.C. 8 158 a) (5).) As an incident to the hearing of such charge by the Board, and upon review by a United States Court of Appeals, the certification of the Union can be inquired into. (29 U.S.C. §159(d), 160.) The de- .- J * J i . * > j 5 „ ; 85 fol. 681 fendant further contends in this Wee that eden under Leedom V. Kyne, supra, it is only the Union ma charge. Second, it presupposes that, upon the filing of duch an unfair labor charge by the Union, the Board wil! institute an enforcement proceeding. These presupposi- tions are patently without foundation. The likelihood that _ the Union will resort to the use of the powerful. weapon g of picketing, and thereby tie up with a handful of piekets the entire transportation system of the plaintiff, is far greater and more real than the likelihood that the Union will resort to filing an unfair labor charge with the Board. . Assuming, but not admitting, that the Union will file an unfair labor charge upon the plaintiff's refusal to . bargain, the determination of the unfair labor charge by the Board, , and the enforcement proceeding, are known to be prolonged and very time-consuming; and picketing of the plaintiff by the Union while the-case is being decided by the Court of Appeals could mean complete «economic ruin to the plaintiff. Even if the plaintiff would ultimately prevail, its victory would, indeed, be a pyrrhie one. In the light of the foregoing, one is compelled to conclude that the said method of review, allegedly available to the plaintiff, is not an adequate remedy. ; With regard te the contention that aer Leedom v. EKyne, supra, only the Union. can invoke the equity juris- dietion of the Distriet Court, it is the opinion of the Court that nothing in the Leedom case indicates the proposition urged here by the defendant. This. contention was re- [fol. 66] jected by the Court in Worthington Pump and Machinery Corporation v. Douds, et al., (1951, D. C, N. V.), 97 F. Supp. 656, and this Court is in “full agreement with the J. inciples expressed in said case. The defendant also contends that the Court lacks juris- . diction of the members of the National Labor Relations Board who are > indispensable parties’ to this’ action. This » Regional Director (see Empresa Hondurena de Vapores v. McLeod, supra; Williams v. Fanning (1947), 332 US. 490, 92 L. Ed. 95; and Bradley Lumber Co., etc., et al. 3 dete Court is without jurisdiction of the subject matter of Finally the defendant contends that the Complaint fails to state a claim warranting relief. The Court finds z matter and the contention that the action is premature. For the reasons hereinabove assigned, the defendant’s Defendant moves, in the alternative, that a Summary : Judgment be entered in his favor on the basis of the . Oar fol: 67] Complaint, and exhibits attached thereto, and the. Motion, and exhibits attached thereto. . The exhibits at- tached to the Complaint consist of the Deeision and Diree- tion of Election, which is the subject matter of the Com- plaint, together With letters from the assistant to the Re. gional Director, defendant herein, advising plaintiff of “ a ‘the immediacy of the proposed election, copies of agree- ments between the plaintiff and Floors, Inc., with respect to the services involved herein, and 4 certified copy of an order of the United States District Court of the Southern District of Florida, Jacksonville Division, in an action between plaintiff and the pétitioning Union in the instant case, wherein the Honorable Bryan Simpson, United States District Judge, found thé contract between the. plaintiff and Floors, Inc., to constitute an independent contractor relationship. © . 0 5 . „%% ĩ ò . , ak ; 7 f Pes 7 . ‘ Le . N ans . ö is 25 8 PG A 5 é ' ’ J 58 2 5 . : . 2 Board, dated April 17, 1961, wherei the — in o the unit proposed by the-National Labor Relations Board - ° gard to their employer, Floors, Inc.; an Amended Peti- 196 1, naming Southeastern Greyhound Lines and Floors, Inc., as the “employers”; a copy of the Decision and Qirection of Election, which is also.attached as an exhibit to the Complaint; a copy of an Order dated May 25, 1962, denying a Motion for Reconsideration in case No. 12-RC~1209, filed by Floors, Inc.; and a Mem- orandum in Support of Defendant’s Motion to Dismiss the Compla and for Summary Judgment. The Memoran- dum in rt of the Motions will not be construed as evid in the ease but merely as a legal memorandum or b of the defendant. [fol. The plaintiff filed with the Court, and served upon the “defendant, an affidavit of the secretary f s which constitute Floors, Inc., as the sole em- of the employees in the proposed unit. The plain- tiff filed and served upon the defendant the affidavit of J. W. Cable, Regional Manager of the plaintiff for . covering the State of Florida, identifying r rin sen Inc., of Florida, setting forth in detail all of the, el ts oath’ the various attachments to the Complaint, . g to the allegations of the Complaint, and setting forth in substantial detail the relationship between the plaintiff and Floors, Inc., demonstrating a pure indepen- dent contractor relationship. ea Inasmuch as the Motion for Summary Judgment of 2 the defendant raises no issue of fact, and inasmuck as said Motion for Summary Judgment does not refute the allegations of the Complaint or of the affidavits in sup- port thereof, but relies upon the same contentions of law hereinabove ‘referred to with rd to the” Motion to — eee. contentions g found by the Cou be merit. the said Motion for Summary — will likewise bé deniec. The Court finds that the plaintiff has a statutory right not to. be held to be an — ye and together with ah * contractor respect to the employees q4 of said independent contractor in a representative proceed- ing under the Act, and that the violation of the Act on the part of the National Labor Relations Board and the depri- vation of said right of the plaintiff will cause the plaintiff to suffer irreparable injury unless the injunction prayed for be granted. The Court finds that the. plaintiff has no SS en at law. It is therefore; upon considera- ORDERED, ADJUDGED and DECREED: Db ae 1. That the defendant, Harold A. Boire, as Regional Director of the Twelfth Region, National Labor Relations (fol. 69] Board, his successors:or designees, and all per- sons aeting in his stead or under his direction or control be, and they are hereby,, permanently enjoined from con- - ducting, or causing to be conducted, a representation election of all porters, janitors and maids. working at The Greyhound Corporation’s bus terminals in Miami, St. Petersburg, Tampa and Jacksonville, Florida, pursuant to the Decision and Direction of Election of the National Labor Relations Board in that Board's ease No. 12-RC- 1209, issued May 3, 1962, wherein the Greyhound Cor- poration (Southern Greyhound Lines Division) and Floors, Inc., of, Florida, are alleged to be. the employer, and Amalgam Association of Street, Electric Railway 7 and Motor Employees of America, AFL-C10,. is’ alleged to be the petitioner. . : 2. That defendant Motion to Dismiss be, and the same is hereby, denied. : 8 : 3. That defendant’s Motion for Summary Judgment be, and the same is hereby, denied. a as 4. That the defendant was not wrongfully’ restrained by the Tempofary Restraining Order heretofore issued in this case and, therefore, that the bond given by. the plain- tiff as security required by Rule 65 of the Federal Rules of Civil Procedure may be dissolved, and no other or Further security need be given by the plaintiff in this cause. . a ; DoNE and ORDERED at Tampa, Florida, this 1ith day of June, 1962. . _/s¢ Joseph P. Ih „ f 25 United. States District Judge 7 \ | len 70), APA ces A 1962" 0 „mt gg STATES DISTRICT COURT 1 FOR THE SOUTHERN. DISTRICT OF FLORIDA a * 2 — . peals to the United further proceedings in Case No. — — 12-RC-1209 on m the docket of the National Labor Rela . Order was entered on June 11, 1962. 2 National Labor Relations Board . 1 „ ae and 1 > . N. 10 f ga tor Sherr ; 12th Region, NLRB : 112 Cass Street’ : Tampa, secon ‘Dated at Washington, b. 0. this’ 15th day of. June, . = | a 4 , * ete., in the entitled case and respectfully 2 a? | | 4 (fol. 71] that the be trarismitted forthwith do the - _ -Gjerk of the Court of Appeals for the Fifth Circuit. eo 8 . O 1962. pbDated at Washington, D. C., this 15th day of June, tcertiteste of Service ‘omitted in printing] — 2 2 iy oy Se D 28 a7 ee et : Beg „ (fol. 72] e IN UNITED STATES DISTRICT COURT. FOR THE 55 a ey , : May 23 Complaint filed. 3 — May 24 Affidavit of Alexander E. Wilson, Ir ' 8 3＋—— 6 9 29 Pitts. Bond in the sum of $1,000.00 filed 29 Plaintiff’s Certificate of Service, of copies June.5 Order that Temporary Restraining Order is Ex- eis, tended until June 14, 1962; Bond heretofore posted by petitioner shall remain in*full foree and effect until the expiration of June 14, 1962 (furnished mailed -attys. 12 Final Decree Permanent - Injunction and : a attys. 4 18 Defendant’s Notice of Appeal. 18 Defendant's Designation of Record on Appeal 18 Defendant’s Certificate of Service. . { cerity the foregoingtobe a true and core: copy of . the original. g * Jun A. BLAKE, - ; Clerk, United States District ‘\ $4 Court, Southern District of outa, Mo sity, or that te om plaint herein be dismissed. bees : : la) This is without jurisdiction of the subject matter of e action: (b). This Court lacks jurisdiction over ‘the members = the National Labor Relations Board, we are indispensa- ‘ble parties to the action; aay 6 00 The complaint fails to ¢ er Eid complaint f state a damn ‘warranting 2. In the alternative, defendant moves that summary judgment be entered in his favor, pursuant to Rule 56 of the F Rules of Civil Procedure, on the basis of the Complaint, attached exhibits, and 3 motion 12 5 ex- hibits — — a N. 74 = F 1 * 8 > ai 4 te 9 * \ S ö B\ 5 4 E . E 5 2 * = i 8 a 4? 4 9 . 5 0 I. : 9 r j ¢ 8 * * 2 & a as * A 52 * > 2 a ie ¢ 5 4 05 5 / i ite 3 ‘| 0 1 ‘ ö . Tie „ 5 ° 05 : Py ° é : he 222 7 i 2 “i 2 fe 1 we * 5 yee > > . 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A 8 a * — 2 1 a > . 5 eo} . b * — * 2 . I. Se 4 — 7 phe * — * 4 5 . * i ‘ o 2 : y ~*~ 8 5 4 ? 7 5 8 . a 9 R | ; : 8 — \ * as 7 8 5 — ‘ . 0 „ . 5 . * e i 8 | E 8 e 8 a N 1 — ——ñ Ü— ZK . ae = : K ͤ ᷣ—-— 222 : 2 a — — — A wi . 7 8 ie — — 8 8 N 22 1 - eee Oe caves & begun d cabs . 328 i Jiaitno * . . * 1 9 . ‘ * 2 ° o Sat 7 ° 2 . > — . 45 „ “ es bbe 53 0 * * 7 55 . . * : . 8 2 ~ „* — a . ‘ 72 2 7 7 e e 9 * * ° — Nee n. AE reren r . „ . - * * 2444444 —— ain 2 - un 10 ae _ Exum B 10 Moon i abit - (6-61) 5 5 UNITED STATES OF AMERICA - 5) _ ‘BEFORE THE NATIONAL LABOR RELATIONS - BOARD | _ THE GREYHOUND CORPORATION - (SouTHERN GREYHOUND Me F n and a A e th Sina, Wace - RAILWA¥ AND Motor Coach EMPLOYEES OF AMERICAS ' AFL-CIO, PETITIONER © ae - Case No. 12-RC-1209 . DECISION AND DIRECTION OF ELECTION : Upon a pe duly filed, a hearing was held ‘before a 1 2 r of the National Labor Relations Board- His rulings made at the hearing are 1 from — > affirmed. . + © oY “ones: ‘Upon the 4 record, the Board finds: 4, me employer is engaged in commerce within the meaning of the Act. 2. The labor organization named below Gaim (e) . represent certain employees of the Employer. ö 3. A question affecting commerce exists concerning the 3 of certain employees of the Employer, within Section 9. (e) (1) and Section 2 (6) and (7) of 8 the Act. 4. The following 3 of the Employer constitute a unit appropriate for the purposes of collectiye bargain-' ing within Section 9 (b) of the Act: All porters, janitors * and maids working at the Grey- - 1 Names appear as corrested. at the ‘hearing, hires, they. are referred to as Greyhound and Floors, respectively. The Petition was amended at the hearing to inelude janitors. 6 tends that even if the Board finds that the employees sought are an independent contractor, and Floors further argues that the ap- propriate unit consists of eher all ita employees in the above- described cities or three seperate units of all its employees in (1) ployees sought, ine porters in handling baggage, receive work instructions from terminal ls. In addition. the record also shows that Greyhound, on one , prompted the discharge of a whom. it felt to be an unsatisfactory sought, we find both Greyhound and Floors to be their joint em- -ployer. See Panther Coal Company, Inc, et al., 128 NLRB 409, West Teras Utilities Company, 108 NLRB 407, 413-414, enf’d. 218 F. 2d 824 (CA. 5); cert. denied, 349 U.S. 953. We find further that such a unit consisting of. all employees under the joint em- ployer relationship, is appropriate. PHILIP RAY RODGERS. MEMBER, dissenting: : On the basis of the record herein, I would “find that the em- ployees sought are ees of Floors, that Floors is an inde- pendent contractor. a at the only appropriate unit is one com- prised of. all of Floors’ in the‘nbove-described | 0 Accordinety, 1 would diemies the — . NATIONAL LABOR RELATIONS BOARD « a. H ; . ¢ linz 9122725 cause been . Those to be Amal- and AFL-CIO. ee FRANK W. MCCULLOCH,’ Chairman Electric. Railway Member JoHN H. FANNING, Member GNA A. BROWN, Member NATIONAL LABOR RELATIONS Bow LEEDOM, * Association of Street, Coast Employees of America, [SEAL] gamate - Motor . A ny Rey Dated, Washington, D. C. May 3. 1962. 2 #4 3 3 Esky 4 4 or . om 25 2 TAs ut ae, . Pt Xs Say 50 ay y. 85 15 14 * * 1 / . 5 > . 5 5 n . oe Te ae : "(fol 720), | Exim c 10 Moron | UNITED. STATES OF AMERICA’ ee N . rr THE NATIONAL ABR RELATIONS id BOARD 7 75 A Oe No, 12. RC-1209 ‘THE GREYHOUND CORPORATION (SOUTHERN GREYHOUND de dee an Nau Nor Rane gene 5 _AMALGAMATED A en ap Suna, ELEcTRIG—— —ͤ— e ae Moron Coaoy EMPLovens e é _. AFL-CIO, PevivioneR . "ORDER DENYING MOTION 53535 on May 3, 1962, the Board issued of Election in the Above- entitled — 1, 88, Pry Man = in which it moved the Board to grant its motion that the aforesaid Decision and Direction of Election be vacated and the Petition dismissed, On N May 16, 1962, the Petitioner filed a statement in oel. on. The Board having duly considered the matter, Ir Is HEREBY ORDERED that the said Motion for Re- : eee nothing not previously considered by the Board. - Dated, Washington, D. C. May 25, 1962. e : ee 4 oft quence. A. User Associate Executive Secretary lan me! ose lun en $ "MINUTE ENTRY-OF ARGUMENT AND SUBMISSION — 0 : 2 Oetober 10, 1962. ne [Omitted in Printing] mere: lia 96) ee ie: fe . IN THE UNITED STATES COURT OF APPEALS on THE FIFTH CIRCUIT: | vd 4 ; 2 No. 19766 3 a Twelfth Region, d 0 ‘ n . * THE omen Conronarin, ai 7% : ‘etre Jone and BLL Creat Jug, and ce. District Judge. - OPINION—November 21, 1962. PIR Curiam: The questions in this were carefully considered by the district ‘cussed by the judge to whom the case Greyhound Corporation v. Boire, 205 F. find ourselves in agreement with the principles there the district court is * b A 8 1 \ U 0 0 L : A ; 2 4 * Nee CCP 5 r SSN na 5 ie, a. 8 5 0 | a! ie ate deren from the United States Distict Court for the stated and the decision there reached. ‘The judgment al : a — d 8 - a 0 ¢ é 8 wt ae J ae c * ae fo 90) es goss S „ „ Fon THE FIFTH cincr IN UNITED STATES COURT o APPEALS te Ne 19,785 7 D. C. Docket No. adler. i mae f. ge Twit Ragin, } _ Mationst: Lahey awn grag neni ; Tun GREYHOUND ‘CORPORATION, APPELLEE Apel from th United Staten Dies Gur for te Southern Distriet of Florida. : 1 ae a g [Clerk’s: Certificate. yo foregoing. e omitted in —— 0 Pe a a a el err ee Ie 2 * 1 * ; | V 73° [fol 11 „ oe “SUPREME COURT OF THE: UNITED STATES J a : No. 844, October Term, -1962 a : Hance A. Bünde est Director, Twelfth Region, National e Relations Board, PETITIONER g * v8. 7 3 7 5 5 THE GREYHOUND CORPORATION = ; Oben ALLOWING Cenrionani—April 15, 1963 _ "The petition herein for “a writ og certiorari: to the ef United States Court of Appeals for the Fifth Circuit is granted, and the case is placed on the summary calendar. oAnd it is further ordered that the duly certified. copy of the transcript of the proceedings below which accom- —— ee ene ee ee ; eS „ 8. éovenwutar paintine orrice; 1963 ' @89236 1230 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0027%3A01. Public record. Not legal advice.